3rd Session, 37th Parliament

REPORT OF PROCEEDINGS (HANSARD)

SELECT STANDING COMMITTEE ON

PARLIAMENTARY REFORM, ETHICAL CONDUCT, STANDING ORDERS AND PRIVATE BILLS

Victoria

Thursday, May 30, 2002

Issue No. 7

BARRY PENNER, MLA, CHAIR

ISSN 1703-2474

Published under the authority of the Speaker Internet: www.legis.gov.bc.ca/cmt

SELECT STANDING COMMITTEE ON PARLIAMENTARY REFORM, ETHICAL CONDUCT, STANDING ORDERS AND PRIVATE BILLS

Victoria Thursday, May 30, 2002

Chair: * (Chilliwack-Kent L)

Deputy Chair: * (Burnaby-Edmonds L)

Members: * Bill Bennett (East Kootenay L) * Jeff Bray (Victoria–Beacon Hill L) * (Oak Bay–Gordon Head L) * Walt Cobb (Cariboo South L) * (Chilliwack-Sumas L) Paul Nettleton (Prince George–Omineca L) * Joy MacPhail (Vancouver-Hastings NDP)

* denotes member present

Clerks: Craig James

Committee Staff: Josie Schofield (Committee Research Analyst)

CONTENTS

Select Standing Committee on Parliamentary Reform, Ethical Conduct, Standing Orders and Private Bills

Thursday, May 30, 2002

Page

Adoption of Agenda ...... 39

Premature Disclosure of Committee Report...... 39

Committee Report ...... 42

MINUTES

SELECT STANDING COMMITTEE ON PARLIAMENTARY REFORM, ETHICAL CONDUCT, STANDING ORDERS AND PRIVATE BILLS

Thursday, May 30, 2002 8:30 a.m. Douglas Fir Committee Room Parliament Buildings, Victoria

Premature disclosure of committee report

Present: Barry Penner, MLA (Chair); Patty Sahota, MLA (Deputy Chair); John Les, MLA; Ida Chong, MLA; Bill Bennett, MLA; Walt Cobb, MLA; Jeff Bray, MLA; Joy MacPhail, MLA

Unavoidably Absent: Paul Nettleton, MLA

1. The Committee was advised that Ms. , MLA would not be present as a witness at today’s meeting.

2. The Committee considered written responses by Ms. Jenny Kwan, MLA to questions asked by the Committee in relation to the premature disclosure of a committee report.

3. Ms. MacPhail, MLA made a statement regarding the process embarked upon by the Committee in the discharge of its terms of reference.

4. The Committee considered a draft report to the House in camera.

5. The Committee amended its draft report.

6. The Committee met in public to adopt its report to the House.

7. It was moved by Mr. Les that,

The Committee adopt the Report as its Third Report to the House, as amended.

A debate arising and the question being put it was agreed to on the following recorded division:

Yeas(5) Nays (1) Chong MacPhail Bennett Les Sahota Bray

8. The Chair was instructed to present the Committee’s report on the matter of a premature disclosure of a commit- tee report to the House as soon as possible.

9. The Committee adjourned at 9:36 a.m. to the call of the Chair.

Barry Penner, MLA Craig James Chair Clerk of Committees and Clerk Assistant

39

THURSDAY, MAY 30, 2002 was seeking advice on that point. Once that decision was taken, the draft report in question was set aside. The committee met at 8:35 a.m. Not once throughout this process or at any time in the Legislature is there any evidence that Ms. Kwan [B. Penner in the chair.] sought to have the report released publicly. Indeed, Jim Beatty, a reporter of the Vancouver Sun, reported that B. Penner (Chair): Good morning, everyone. I'd she refused to share the report with the media. There is like to call the committee to order. It's now 8:35 a.m. no evidence that Ms. Kwan had any intent to use the draft report to interfere with the proceedings of the Adoption of Agenda committee in question. I'm pleased that all members have received a copy B. Penner (Chair): Item No. 1. We have the issue of of her submission and have read it. I hope they have adoption of the draft agenda, which has been circu- read carefully all of the materials provided to the lated. Do I have a motion to adopt the agenda? Motion committee, because these are the kinds of cases that by John Les. have been provided to us where a breach of privilege and contempt have been found in the past. We need to Meeting agenda approved. compare those cases with Ms. Kwan's circumstances. I would point out to government members that Premature Disclosure of perhaps they should also read carefully the case re- Committee Report garding Mr. Ernie Ross. That case deals with a gov- ernment MP in Britain. B. Penner (Chair): Item No. 2 on the agenda. Con- Indeed, contempt has been found where a govern- sideration of written response by Ms. Jenny Kwan, ment member shared a draft report with, oh, let's say, the dated May 29, 2002, to questions raised by the commit- equivalent of Martyn Brown in this government, prior to tee at our last meeting. I see Ms. MacPhail has her hand its release — perhaps a twist on the kind of warning that up. the government might be trying to send to its own mem- bers by convening this very suspect, I would say, kanga- J. MacPhail: Yes, Mr. Chair. I'm going to take a few roo court. That case is extremely instructive. moments — probably about ten minutes — to speak to Nowhere is there evidence that Ms. Kwan sought to this issue. obstruct or intimidate the committee. Indeed, there is Ms. Kwan isn't here, because it would be quite a no evidence that Ms. Kwan was the definitive source of surprise if the entire opposition caucus devoted their the material that Mr. Chudnovsky released to the me- energies to this exercise when there are important mat- dia. This, I would argue, is key to the conclusions we ters happening in the House at 10 a.m. We have di- might come to here. I'll come back to that point later in vided up our responsibilities, and because I am a my remarks. member of this committee, Ms. Kwan is being given [0840] the assignment to prepare for the Legislature at 10 a.m. First, I'm going to highlight some of the points of I'll proceed. It'll take about ten minutes. Ms. Kwan's submission that struck me as particularly important to consider. I'm going to quote directly from B. Penner (Chair): Go ahead, but I'd just like to her submission those parts, if I may, that are instruc- indicate for the record that I believe that all members of tive. I speak first to paragraph 12, which reads: "This the committee have received copies of the submission. type of inadvertent public disclosure arising from the Is that correct? regular confidential work of a member of the Legisla- I don't see anybody indicating otherwise. I will tive Assembly was specifically excluded from the cate- presume all members have seen and, hopefully, read gories of 'serious' cases for which some penalty might the submission. Please proceed. be appropriate, by the British House of Commons committee of privileges in its second report of 1984-85." J. MacPhail: Thank you very much, Chair. I have a copy of that report for committee members. Of course, the Chair is referring to the submission Let me quote from the report. "The House should that Jenny Kwan made in writing to the questions exercise its penal jurisdiction (1) as sparingly as possi- raised by committee members at the meeting of May ble and (2) only when satisfied that it was essential to 28, I think it was. do so in order to provide reasonable protection for the I've prepared written remarks to keep on track. Ms. House and its officers from obstruction or threats of Kwan's submission is full and frank. It lays out in de- obstruction causing or likely to cause substantial inter- tail answers to each of the three questions raised by the ference with the performance of their functions." committee on May 28. She makes clear that she shared Also cited in that report is Parliamentary Practice in the draft with a limited number of people and that the , by the Clerk of the House, Mr. Mac- material was shared with the understanding that it was Minn. That's at page 51. to be on a strictly confidential basis. The report from the British House of Commons She was seeking their advice on the matter of continues: should her minority report be framed within the con- "One probable source of some leaks is inadvertent text of the draft report, or should it stand alone. She disclosure by a member. Some members naturally 40 PARLIAMENTARY REFORM THURSDAY, MAY 30, 2002

discuss the work of their committees with other [0845] members, with their own staff or with others who may Where is the evidence that Jenny Kwan actually have relevant advice or experience, without intending was the source of the material that Mr. Chudnovsky publication, but others may not have the appropriate used in his speech? Where is the smoking gun, as it respect for information of this kind, that they have been given in confidence, and published leaks result." were? The only indication that we have that she might The committee distinguished these inadvertent have been the source is her apology itself, and yet this leaks from the intentional type of leaks of primary con- committee is proceeding to railroad Jenny Kwan based cern, which are described in the report as follows: "But solely upon an apology that some of those very mem- it is clear from the evidence and from the nature of bers have characterized as not being definitive. many leaks that the majority of them, especially the Well, you can't suck and blow on this one. It would more serious disclosures of the contents of draft re- have to be a pretty rock-solid apology if it gave you ports, are the deliberate work of members of commit- enough evidence to find her in contempt — "you" be- tees acting for political or personal motives." ing the committee members other than me. Good The committee concluded that it would be unjust to enough to meet the test of any apology Mr. Maingot punish a person who was the inadvertent source of speaks of, I would suggest. information that was subsequently published without I'll quote once more from Jenny Kwan's submission the person's knowledge or intent. for those who didn't get to the last few pages before I quote again from the British House of Commons, having to conclude their evening last evening. She 1984: "As has often been argued, it might be thought says: "I made a clear apology at the first instance in this unjust to punish the publisher of a leak while the origi- matter. With all respect to the members of this nal source goes unpunished, although this could not be committee, there was nothing equivocal in my apology. I argued where a leak was inadvertently disclosed or disclosed to the House exactly what I had done with the obtained in some other way without the involvement draft report and apologized for any part I may have of the member." In Ms. Kwan's submission, that point played in the matter. Obviously, beyond my direct is highlighted in boldface. knowledge of what I had done with the report, I was not When it came to identifying the serious leaks for in a position to state with any certainty the specific means which punishment might be appropriate — I refer to by which Mr. Chudnovsky came into possession of the information he disclosed to the media. Yet even in the pages 12 to 14 of the British House of Commons report absence of such knowledge, I offered a complete — the committee did not include cases of inadvertent apology. In my submission, the issues with respect to me disclosure that arise from members naturally discussing should have been brought to an end immediately with the work of their committees with other members, with my apology." their own staff or with others who may have relevant That's from the submission from Jenny Kwan. advice or experience, without intending publication. That is the test that this committee is going to have What Jenny Kwan has done is to draw our attention to take today — a bit of a conundrum, I'll admit. If the to the fact that there is a documented understanding apology was good enough to definitively identify Ms. that members of committees do share draft reports on a Kwan as the culprit, then it must have been fulsome confidential basis with advisers, and that while there enough. If not, then without any further evidence, I may be punishments meted out to those who breach don't know how you can find her guilty. Perhaps the the privilege of a committee by causing a draft report committee can sit through the summer and hear from to be published, those who are caught up in circum- enough witnesses to definitively identify the source of stances beyond their control and who are inadvertently the leak. involved in the release of a report by another individ- Finally, Mr. Chair, I will request that Jenny Kwan's ual are to be exempted. submission be attached to any report that this commit- What kind of punishment is most commonly laid tee will make to the House. upon those who are deserving of punishment? We are all in possession of Maingot's sage words of advice, B. Penner (Chair): Sorry, can you just repeat what wherein he states: "An apology by the offending mem- you said in your conclusion? ber will invariably close the matter without the neces- sity of putting the motion to a vote." Regrettably, we J. MacPhail: I said: I request that Jenny Kwan's are well beyond that moment in time on this matter. submission be attached to any report that this commit- When Ms. Kwan stood in the House and offered tee will make to the Legislature, to the House. her apologies, she was abused by the Government House Leader, his sidekick the government Whip and B. Penner (Chair): Thank you for those comments, others. Indeed, this committee has among its member- Ms. MacPhail. ship individuals who have chosen to call her "the ac- I see Ida Chong. cused" and have spoken of "retribution," despite her apology. Indeed, just at the last meeting, it was dis- I. Chong: I thank the member for Vancouver- cussed that her apology "wasn't good enough." This is Hastings for her opening remarks. where I think it is important to get back to that frustrat- I'll begin, first of all, by stating that as one of the ing legal technicality that I spoke of earlier: evidence. members who had suggested a question that we pose

THURSDAY, MAY 30, 2002 PARLIAMENTARY REFORM 41 to the member for Vancouver–Mount Pleasant, I ap- information that appeared in the Vancouver Sun," I have preciate having received a written response. to say that "may," "might" and "if" is a pretty condi- The question I had posed was whether the member tional apology, and to me, I can't accept it. was aware of the rules prohibiting the premature dis- closure of confidential draft reports from committees. I B. Penner (Chair): Thank you, Mr. Cobb. do note that the member for Vancouver–Mount Pleas- Maybe for your benefit and for the benefit of the ant did respond, and again I want to say for the record committee members, I'll just suggest, on the advice of that I do thank her for her response. the Clerk, that it's the Speaker who needs to be satisfied While she says she did know the rules — and I by an apology, because it was the House that was of- have read her comments — it appears from reading fended; it wasn't this committee. So while we're cer- those remarks that her understanding of application of tainly entitled to have our views, ultimately, it's normal the rule prohibiting the sharing of confidential reports practice that an apology be satisfactory to the Speaker. is different from mine. So I do want, as I say, to thank her for that response because I have found that useful. J. Bray: I'm sort of pleased, from two days ago, that Ms. Kwan did respond. I think she did give a fairly de- B. Penner (Chair): Thank you, Ida. tailed response. I agree with the other members who'd I recognize John Les. actually asked some of those questions and the response. I guess as the person who kind of suggested the J. Les: Very briefly I want to acknowledge Ms. written question format, I'm pleased that it looks to Kwan's response to the question that I raised the other have worked fairly well. I'm quite pleased with that. day. My question was specifically around with whom I'm pleased the member for Vancouver–Mount Pleas- she had shared the report. She states in her question — ant responded. I think it's been helpful. I think it will and I'm paraphrasing: amongst others, with paid help us to resolve this matter quickly. staffers from the B.C. Teachers Federation. Although I actually want to echo Mr. Bennett's comments, in she doesn't name anyone in detail, I'm not sure that's that I think it will be instructive for us to maybe help particularly material at this point. look at some guidelines and some rules to help future I would differ with the acceptability of sharing with parliamentarians, because this really is something we people in those positions. I'll probably have more to haven't dealt with before. I'm also a rookie, and I think say about that later, as we draw to a conclusion. I just it would be quite helpful. I'm just pleased that the want to say for the record that I appreciate Ms. Kwan's process seems to have worked fairly well. I hope we response to my question. can move to resolve this issue fairly quickly.

B. Penner (Chair): Thank you, Mr. Les. B. Penner (Chair): Did I see your hand up? Bill Bennett? [0850] P. Sahota (Deputy Chair): Yes. Thank you, Mr. Chair. I, too, would like to thank Ms. Kwan for her answers B. Bennett: Since the outset of these proceedings, to the questions the committee put forth; also, for Ms. I've wanted to know why the member felt that it was MacPhail's submission. I've heard from my colleagues, necessary to disclose a confidential draft report, par- so I think it's time we resolve this matter and move on. ticularly to people not connected to the Legislature. I would like to make a motion that we go in camera I have reviewed the member's submission, and I for the purposes of deliberating and preparing our appreciate the fact that it's been made in some consid- submission and our report to the Legislature on this erable detail. I do appreciate that. I suggest that the issue of premature disclosure of a report. member's comments would be helpful if this commit- tee decides to make recommendations around the rules B. Penner (Chair): I'm advised by the Clerk that the impacting confidentiality and draft reports from legis- motion's in order. lative committees. Personally, as a newer MLA here in On the motion. the Legislature, I think there is some benefit to doing Ms. MacPhail? that for members serving on committees in the future. J. MacPhail: I'm just curious as to why we're going W. Cobb: I guess what I have to say relates back to in camera. I mean, we're at a stage now where we don't what I said before. In this report I don't see anything have the accused here, and I haven't been able to call about an apology that's acceptable to me. At the last witnesses. I'm just curious as to where this goes as to meeting, I said that I would be satisfied with an un- being in camera. Do we sit as judge and jury behind the qualified apology, and I don't have that. scenes? I'd like to quote once again the comments made by the member. In those comments, "I regret any part that B. Penner (Chair): Thank you, Ms. MacPhail. I may have played in the matter and apologize to the [0855] House and to those who might have been offended if, The Clerk just points out to me that it's common- in fact, the information from my office was a result of place while we're deliberating on a confidential report

42 PARLIAMENTARY REFORM THURSDAY, MAY 30, 2002 to the Legislature that we do it in camera, or else it [B. Penner in the chair.] won't remain confidential before we report to the Leg- islature. Committee Report

The Clerk reminds me that this committee is not B. Penner (Chair): We're back in public session. charged with sitting intersessionally, so if we're to con- We've had a discussion about our report to the Legisla- clude our work, we need to do that today in order to ture. I would look for a motion that the report, as dis- report to the Legislature, hopefully by the end of today cussed, be adopted. to resolve this matter and end any uncertainty. Motion approved on the following division: J. MacPhail: Fair enough, Mr. Chair. I accept that ruling, but it does seem to be another step toward what YEAS — 5 has clearly become a court not of any making that I've ever been familiar with. I use the term "kangaroo court" Chong Bennett Bray and will continue along that path. Is it the parliamentary tradition, then, that after the Les Sahota report is released to the Legislature, the in-camera Han- sard can be released? NAYS — 1

B. Penner (Chair): I'm advised that is not the prac- MacPhail tice. I'm advised that we don't need a seconder for the motion. Any further debate on the motion? Seeing B. Penner (Chair): I need a motion to present the none, I put the question: should the motion, as stated, report to the House. be approved? [0935]

J. MacPhail: Sorry? Motion approved.

B. Penner (Chair): We called the question. B. Penner (Chair): Any other business? That's our last agenda item. Motion approved on division. I'm just advised that the, hopefully, final draft ver- sion of the report will be circulated by the Clerk's office B. Penner (Chair): The committee will now move to between 11 and 12 this morning. The expectation is that sit in camera for the purposes of preparing our draft I will be presenting that on behalf of the committee this report to the Legislature. afternoon, shortly after 2 o'clock. A motion to adjourn would be in order. The committee continued in camera from 8:56 a.m. to 9:33 a.m. The committee adjourned at 9:36 a.m.